Senators work to end America’s cash bail system

In these hyperpolarized days, it’s difficult to imagine Congress making bipartisan strides toward solutions to almost anything, let alone entrenched injustices. So Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., deserve much of the positive media attention they’ve garnered for introducing a new bill that would address an important criminal justice reform: reducing the use of cash bail for pretrial defendants.

Harris and Paul have picked a good cause. The courts want to make sure that defendants will return to face the court for their trial. So asking for large sums of money in exchange for pretrial release may seem, in theory, like sensible public policy.

The problem is that, in practice, cash bail mostly serves to underline the costs of living in an economically unequal society. Poor defendants stay in jail because they don’t have large sums of money to offer. This costs them major life disruptions, like job loss, and it costs the public money. Hundreds of thousands of people around the country are being held in jail before their cases are heard, just because they can’t make bail.

Meanwhile, wealthier defendants are allowed to reenter the community regardless of the danger they may pose.

A person’s financial situation isn’t the only way to judge the risk a defendant poses to public safety, or even the most accurate way.

Large cities around the country have recognized these realities and are quietly moving to reform their cash bail systems. Their reasons are based on both equity and economics.

Washington, D.C., has successfully offered cash bail alternatives to most suspects for years. Last week, Chicago became the largest U.S. city to base bail amounts on a defendant’s ability to pay. It also allowed judges to consider defendants’ financial ability to pay for their pretrial release.

San Francisco District Attorney George Gascón is running a pilot project to use data-driven risk assessments on individual defendants, rather than one-sizefits-all bail amounts, to decide whether they should be released pretrial.

The federal government has also been moving away from a cash bail system. And a handful of states, including New Jersey, have moved forward with reforms that employ risk assessments rather than bail amounts

to manage their pretrial jail populations.

But for the most part, states have been slower to reform. California, for example, tried and failed to pass a bail reform bill while Harris was state attorney general.

So Harris and Paul are offering a modest proposal to encourage states to catch up.

The Pretrial Integrity and Safety Act would create a fund of $10 million in grant money. Up to six states could apply for the grant, which would enable them to drop or restrict cash bail in favor of alternative assessments, based on best practices.

By any measure, this is a cautious bill. It offers incentives for reform and allows states to use different kinds of assessment tools rather than mandating a particular program. Still, it’s likely to face an uphill climb in Congress. Paul has been a serious advocate for criminal justice reform for many years, but many of his Republican colleagues are more skeptical. Nor are all Democrats eager to take up an issue that has deep-pocketed defenders, including the bail bonds and insurance industries.

Even if the bill were to pass, it could face steep headwinds from Attorney General Jeff Sessions’ Department of Justice.

As the bill is written, the Justice Department would have a major role in its implementation. While most states, cities and other jurisdictions are moving away from historically harsh criminal penalties, Sessions has made it clear his intention is to shore them up. He would be an unlikely candidate to strongly implement this bill, should it become law.

Despite the difficult climate, Harris and Paul are wise to start the push for this bill here and now. Even if it doesn’t pass Congress this year, it’s already started an important conversation among states about their bail practices. The more states learn, the more likely they are to consider an option that will increase equality and save money without compromising public safety.